State v. Chernick

• Decision Date: 09 May 1955
• Docket Number: No. 1,No. 44353,44353,1
• Citation: 278 S.W.2d 741
• Parties: STATE of Missouri, Respondent, v. Glenn CHERNICK, Appellant
• Court: Missouri Supreme Court

Page 741

278 S.W.2d 741

STATE of Missouri, Respondent, v. Glenn CHERNICK, Appellant.

No. 44353.

Supreme Court of Missouri, Division No. 1.

May 9, 1955.

Morris A. Shenker, St. Louis, for appellant.

John M. Dalton, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.

VAN OSDOL, Commissioner.

Defendant was convicted of assault with intent to kill with malice aforethought Section 559.180, RSMo 1949, V.A.M.S., and his punishment assessed by a jury at twenty years in the state penitentiary. He has appealed from the ensuing judgment.

The charge by indictment arose out of events occurring April 24, 1953, during a robbery of the Southwest Bank at the southwest corner of the intersection of Southwest Avenue and Kingshighway Boulevard in St. Louis.

January 25th, two days before the trial of the instant case began on January 27, 1954, defendant was convicted of robbery in the first degree by means of a dangerous and deadly weapon, Sections 560.120 and 560.135, RSMo 1949, V.A.M.S., and his punishment was assessed at five years in the state penitentiary. This conviction was upon evidence of events occurring during the same robbery of April 24th. Defendant has also appealed from the judgment and sentence for robbery.

A little after ten in the morning of April 24, 1953, three armed men entered the offices of the Southwest Bank. One of the armed men, Fred Bowerman, took a position on a counter near an entrance of the bank and, armed with a sawed-off shotgun, 'covered' the employees and customers of the bank, and directed the movement of his confederates. Another, Frank Vito, carrying a satchel, gathered cash from various tellers' cages; and the other, one William Fred Scholl, crouched in front of a counter and, with pistols, was also covering the employees and customers. Soon after the three armed men had entered, Robert Heitz, a policeman, entered the bank through a north (Southwest Avenue side) door, and fired his pistol striking Scholl through the back. The noise of the discharge of Heitz' pistol attracted the attention of Vito and Bowerman who both fired at Officer Heitz. The officer sustained shotgun wounds in the right side of the neck, the right ear and right side of the head, and a pistol wound in the right shoulder. Subsequently, and within a very few minutes, the bank building was surrounded by many policemen. Although Vito had taken large sums of money from tellers' cages, the three--Bowerman, Vito and Scholl--were unable to escape. Bowerman, using a lady customer as a hostage and shield, attempted to escape through the front door of the bank building, and was shot and fatally wounded by Officer Stein; Vito destroyed his own life; and Scholl, wounded by Officer Heitz, surrendered.

It is not the position of the State that the evidence shows defendant was inside and participating in the actual robbery. It was, and is, the State's theory that defendant, acting in concert with Bowerman, Vito and Scholl, was constructively present and aiding and abetting by operating a 'getaway' car. There was evidence introduced tending to show that a 1951-model Oldsmobile of green color was parked headed southwardly at the curb in a 'no parking' zone on the west side of Kingshighway and east of the bank building. At a time when it could have been seen that police officers had the bank building entirely surrounded and that Bowerman, Vito and Scholl were entrapped, the driver of this automobile drove away. There were evidence that, at the time, Vito had remarked to Scholl that 'the car was gone.' It is the State's factual theory that defendant was the driver of the green Oldsmobile; that it was the getaway car; and, consequently, that defendant was present and aiding and abetting Bowerman, Vito and Scholl.

Defendant-appellant makes the primary contention the trial court erred in overruling his motion to dismiss the indictment, or to stay the proceedings of the instant case until the judgment upon the conviction of robbery may become final. It is defendant's position that he has been again put in jeopardy for the same offense of which he was formerly convicted, in violation of constitutional provision, Const. art. I, Sec. 19, V.A.M.S. Defendant-appellant further contends the trial court erred in overruling his motion for a judgment of acquittal. He urges the evidence was insufficient in tending to show defendant was present and was in fact the driver and in charge of the getaway car. Defendant-appellant makes other contentions of errors of the trial court to some of which we shall allude, after we shall have examined the evidence tending to show defendant's guilt and his contention of former jeopardy.

There was evidence introduced by the State tending to show that a young man using the name of 'George Roche' appeared at the home of a Mrs. Ottinger at 1918 Victor Street on April 14, 1953, and rented rooms which were occupied by him and another, who, it may be inferred, was Bowerman or Vito. Mrs. Ottinger was later able to identify defendant as the young man who rented the rooms. Defendant and the other man occupied the rooms at the Ottinger home until April 24th, the day of the robbery. On that day they left the rooms a little after seven in the morning. Defendant was again seen at the Ottinger home at a quarter after eleven that morning, and again at about one in the afternoon. Investigating officers subsequently examined articles of men's apparel found in the rented rooms. Some of the garments were marked 'V-e(or i)-t-o.'

The Ottinger residence is about a block and a half from a point on Lemp Avenue where the police officers later discovered a parked black 1950-model Oldsmobile. This car bore a Missouri license plate and had an Illinois license plate under the seat. It is inferred the car had belonged to Vito. The police officers also found a Hudson automobile on Shaw Avenue, the title of which had been issued to 'John W. Fredricts'--the name Bowerman was using at the time of the robbery. This automobile also had an Illinois license plate under the seat. The Oldsmobile of green color, which automobile the State asserts defendant was using at the time of the robbery, was found early the next day, April 25th, on a street about six blocks from the Southwest Bank.

Angeline Strippgen, who was employed at a restaurant across the street from the Southwest Bank building, and her husband, Theodore Strippgen, testified that a man, later identified as defendant, and another man (apparently Vito) had come to the restaurant at about four-thirty in the afternoon of April 22d. These men asked for directions to the point, Kingshighway and Gravois, but walked to the restaurant window--the one that 'faces out' toward the bank--and 'they stood there and conversed in low tones.'

Gertrude Eschrich, who, April 22d, was on duty at her husband's hardware store on Gravois, about two and a half blocks from the Ottinger home on Victor street, testified that two men, one of whom (the younger) she later identified as defendant and the other as Bowerman, entered the store and asked for ammunition of a particular caliber. The witness could find no ammunition of that caliber in stock, and the men departed.

Myrtle Howard, a Salvation Army collector, was at her station outside of the Southwest Bank on the morning of April 24th. Her position was 'right at the front door.' At ten or ten-fifteen she learned there was a 'holdup' in progress in the bank and, after the policemen came and there was 'shooting,' her attention was drawn to a car 'out there in front.' The car had a real light top and little darker body. A man got out of the car on the passenger side, the side nearest the curb; the man had on a light tan suit and a light tan overcoat. He 'pulled a gun out' and pointed it at the witness or at Officer Stein. The man then walked around the hood of the car and stood on the other side. He had the gun pointed through the glass. He stood there for about two minutes, 'and then got in the car and drove away real fast.' The witness did not get a look at the man's face.

An unidentified person had noted the Illinois license plate number displayed on the green Oldsmobile and reported the number to the police. This Oldsmobile, as stated, was found the next day within a few blocks from the bank. It was a stolen car. This automobile had been seen by a witness, Richard Compton, who had parked his own automobile near the bank while the robbery was in progress. He heard some confusion, and then saw a man get into the green Oldsmobile and drive away. The man was dressed in brown or tan, wore a topcoat and had a khaki handkerchief on his face.

Casmir Lapski was a paper vendor, with position in front of the bank building on April 24th. He is Polish, and testified through an interpreter. The witness testified he saw defendant drive a green automobile to a point near the bank. This, he said, was about a quarter after nine in the morning. He identified defendant as the driver of the car. The driver turned and stopped the car on Southwest Avenue. Two other men got out of the car, and the driver turned the car around and drove away. The witness said the policemen later 'took the car and took him (the driver).' He further testified of seeing the automobile on Shenandoah, east of Kingshighway; and he also saw the car on the west side (and again, he said, on the east side) of Kingshighway--it was parked there about twenty minutes.

Defendant was apprehended in Chicago and was returned to Missouri in June, 1953. He was questioned by the Circuit Attorney of the City of St. Louis on June 25th. The Circuit Attorney testified that defendant saw, and admitted recognition of Mrs. Ottinger (and he recognized a Mrs. Cheney, who with her husband was residing at the Ottinger home in April, 1953). Defendant admitted he and Vito were in St. Louis the preceding April, and that he knew Bowerman. Defendant corrected a statement which had been purportedly made by Scholl...